Summary
In State v. Avcollie, supra, 188 Conn. 626, the jury sent a note to the court stating that it was deadlocked eleven to one for conviction. Our Supreme Court held that the fact that the court knew that there was a lone dissenter did not make the Chip Smith charge coercive, inasmuch as the nature of the division was disclosed to the court voluntarily, without solicitation.
Summary of this case from State v. ColonOpinion
(10089)
Indicted for the crime of murder in connection with the death of his wife, the defendant was acquitted of that crime by the trial court which set aside the verdict of guilty returned by the jury. The state, on the granting of permission by the trial court, then appealed to this court, which found error and remanded the matter to the trial court with direction to render judgment that the defendant was guilty. On the defendant's appeal to this court from the judgment of guilty so rendered, held: 1. There was sufficient evidence to permit the jury to find the defendant guilty beyond a reasonable doubt. 2. The absence of an attorney on the grand jury panel which indicted the defendant was irrelevant to the validity of the indictment. 3. Because the defendant failed to show that he was harmed by the action of the trial court excluding him, on the ground that he was an attorney, from the proceedings of the grand jury which indicted him, that exclusion, although it constituted an abuse of that court's discretion, did not constitute reversible error. 4. The trial court correctly granted the state's motion to quash subpoenas issued by the defendant to the grand jurors who had returned the indictment, the defendant having failed to lay any foundation in support of his claim that the grand jury was "selected in an unconstitutional manner." 5. There was no merit to the defendant's claim — raised for the first time on appeal, but considered under the bypass rule of State v. Evans ( 165 Conn. 61) — that he was denied due process by the trial court's instruction to the jurors to consider his interest in the outcome of the case when they weighed his credibility. 6. The defendant's challenge to the trial court's charge on the issue of sanity, having been made for the first time on appeal, did not warrant consideration by this court. 7. The trial court's charge on intent was not likely to have misled the jury. 8. The trial court did not err in giving a supplemental "Chip Smith" charge, the fact that that court knew that the jurors were deadlocked eleven to one notwithstanding. 9. The trial court did not err, following this court's remand of the matter to it for reinstatement of the verdict and imposition of judgment, in refusing, as beyond the scope of that remand, to hear juror testimony proffered by the defendant in support of his claim that the original jury verdict was not unanimous.
Argued October 7, 1982
Decision released December 14, 1982
Indictment charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Cohen, J.; the trial court set aside the jury's verdict of guilty and rendered a judgment of acquittal; this court, on appeal by the state, set aside the judgment, reinstated the jury's verdict, and remanded the case to the trial court with direction to render judgment that the defendant was guilty and to impose sentence; on denial of certiorari by the United States Supreme Court, the trial court, Stoughton, J., rendered judgment of guilty, from which the defendant appealed to this court. No error.
John D. Jessep, with whom, on the brief, was Theodore I. Koskoff, for the appellant (defendant).
Francis M. McDonald, Jr., state's attorney, with whom were Paul E. Murray and Catherine J. Capuano, assistant state's attorneys, for the appellee (state).
The defendant, Bernard Avcollie, was indicted on November 21, 1975, for the murder of his wife. After a jury trial, the jury returned a verdict of guilty which, at the defendant's request, was immediately set aside by the trial judge, who rendered a judgment of acquittal. The state, with permission of the trial court pursuant to General Statutes 54-96, appealed the judgment to this court. After a review of the record, we concluded that it supported the jury's verdict. We therefore found error, set aside the judgment of the trial court, reinstated the jury verdict, and remanded the case with direction to render judgment that the defendant was guilty and to impose sentence. State v. Avcollie, 178 Conn. 450, 471, 423 A.2d 118 (1979). The defendant's petition for certiorari addressed to the United States Supreme Court was denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980), and judgment of guilty and imposition of sentence followed.
A detailed statement of facts is unnecessary to our determination of this appeal, but may be found in our prior opinions in this case, State v. Avcollie, 178 Conn. 450, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980), and State v. Avcollie, 174 Conn. 100, 384 A.2d 315 (1977). Facts relating to specific claims will be included in our discussion thereof.
The defendant now appeals from that judgment, challenging (1) the sufficiency of the evidence; (2) the grand jury procedure and selection; (3) the court's charge to the jury on the issues of (a) the defendant's testimony; (b) sanity; and (c) intent; (4) the giving of a supplemental "Chip Smith" charge; and (5) the court's refusal to hear juror testimony regarding the verdict.
I
SUFFICIENCY OF THE EVIDENCE
The defendant claims that the evidence was insufficient as a matter of law to support the jury's verdict. This court has already held otherwise. State v. Avcollie, 178 Conn. 450, 423 A.2d 118 (1979). In a belated reargument, the defendant claims several factual inaccuracies in our earlier opinion. We remain convinced that our decision correctly held that there was sufficient evidence to permit the jury to find the defendant guilty beyond a reasonable doubt.
The proper procedure to correct errors in an opinion of this court is to file a motion to reargue within ten days of the date when the decision is announced. Practice Book 3111A. The defendant did not avail himself of this procedure at the appropriate time.
II THE GRAND JURY
Wanda Avcollie, the defendant's wife, was found floating in the family swimming pool at approximately 2 a.m. on October 30, 1975. At about 2:47 a.m. she was pronounced dead by the medical examiner of Waterbury. On November 21, 1975, a grand jury returned a true bill accusing the defendant of murdering Wanda Avcollie, in violation of General Statutes 53a-54a.
The Avcollie grand jury was unusual in two ways. First, no attorney was included on the panel. Second, on motion of the state's attorney, the defendant was neither informed of the proceedings nor allowed to be present during the taking of evidence. The defendant claims that a grand jury so conducted violates article first, 8 of the Connecticut constitution, and denies an accused due process. We find no merit in this claim.
"[Conn. Const., art. I 8] (RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. . . . PRESENTMENT OF GRAND JURY, WHEN NECESSARY). Sec. 8. ". . . No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury. . . ."
When the grand jury in this case was sitting, grand jury procedure was almost entirely governed by the common law. "The state's attorney lays before the court a bill of indictment for murder . . .; the court orders a grand jury to be summoned to consider it; the state's attorney submits a list of witnesses, but neither he nor any counsel for the accused is in the grand jury room . . . . The grand jury proceedings . . . are conducted in secret. State v. Coffee, 56 Conn. 399, 410, 16 A. 151. While the accused is not, as a matter of right, entitled to be present within the grand jury room, in practice . . . he is allowed the privilege of being present in the grand jury room during the taking of evidence by the grand jury although not during their deliberations. State v. Fasset, 16 Conn. 457, 469." State v. Menillo, 159 Conn. 264, 273-74, 268 A.2d 667 (1970).
Grand jury procedure was first extensively codified in the 1976 amendments to the Practice Book, 1963, as 2012-22. These amendments were adopted June 7, 1976, to take effect October 1, 1976. The current rules are essentially the same and may be found at Practice Book, 1978, 604-14. The only provisions of the Practice Book relating to grand juries in 1975 were 477D ("the proceedings before . . . [the] grand jury shall be secret and no attorney for the state or for an accused shall be present . . . .") and 477E (challenge to the array).
A
ABSENCE OF AN ATTORNEY FROM THE PANEL
Although it is the usual practice in this state to include an attorney on the grand jury panel; State v. Menillo, supra, 274 n. 1; nothing in our case law or the present statutes requires it. The defendant does not claim otherwise, but submits that improper, inadmissible evidence may have been heard by the grand jury because no attorney was present, and that he was prejudiced thereby.
This claim seems to assume that the grand jury functions like a trial before a petit jury, where evidentiary rules are required. The defendant misconceives the purpose of the grand jury. "It is, of course, desirable to elicit evidence which would be admissible in a trial court. No claim is made, however, that evidence of that sort was not elicited in this case. The complaint is only that some undisclosed quantum of inadmissible evidence was also heard. The grand jury, here and in England, has, for hundreds of years, convened as a body of laymen, free from technical rules and acting in secret. Their proceedings `are both "ex parte" and interlocutory; moreover, the grand jury only seeks for a "probable cause"; hence, on all principles, the jury-trial rules of Evidence should not apply. Moreover, in point of policy, no rules should hamper their inquiries, nor need a presentment amounting only to probable cause be based on a system of rigid sifting of evidence.' 1 Wigmore, Evidence (3d Ed.) 4, p. 21." State v. Stallings, 154 Conn. 272, 280, 224 A.2d 718 (1966); see also State v. Stepney, 181 Conn. 268, 272, 435 A.2d 701 (1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 799 (1981); State v. Fasset, 16 Conn. 457, 472-73 (1844). Because grand juries are permitted to return a true bill based on inadmissible evidence, the absence of an attorney on the Avcollie panel is irrelevant to the validity of the indictment.
B
EXCLUSION OF THE DEFENDANT FROM THE PROCEEDINGS
When the grand jury was summoned, the state requested that the defendant not be allowed to attend the proceedings because he was an experienced criminal defense attorney. The court granted the request, and the defendant was given no notice of the investigation until the indictment was returned. The defendant contends that he had a right to attend the taking of evidence, and that the denial of this alleged right invalidates the indictment. We disagree.
There is no doubt that from the earliest times an accused has generally been allowed to attend the grand jury proceedings and to cross-examine witnesses. See, e.g., State v. Menillo, supra, 274-75; State v. Wolcott, 21 Conn. 272, 279 (1851); Lung's case, 1 Conn. 428 (1815). Although in State v. Stallings, supra, 282, we mistakenly referred to this practice as a "right," the correct rule is stated in State v. Hamlin, 47 Conn. 95, 104-105 (1879): "It was contended upon the argument in behalf of that defendant that under the rule adopted by the judges of the Supreme Court of Errors in Lung's case, 1 Conn. [428], he had the right to be present before the grand jury while the witnesses produced by the State were under examination by that body, and to put to those witnesses any proper questions. But the rule referred to was intended to confer no such right. It is directory merely. Its purpose was to secure uniformity in the proceedings of grand juries throughout the state so far as it might be done without imposing limitations or restrictions upon the discretionary powers of the court. Before the adoption of the rule it had been the practice of the court to grant to persons accused of capital crimes, if in custody of the sheriff of the county in which the crimes were committed, the privilege of going before the grand jury while their cases were under investigation and interrogating the witnesses produced by the State against them. But it always rested in the discretion of the court to grant the privilege or to deny it; and the rule in Lung's case was not intended to interfere with the exercise of that discretion. The grand jury had, therefore, no authority, unless directed by the court, to cause the defendant Davis to come before them." (Emphasis added.)
More recently, in State v. Menillo, supra, we clearly indicated that the practice of allowing the defendant to attend the grand jury proceedings was grounded upon sound judicial discretion which could be exercised to exclude the defendant for good cause. We there stated "where [the accused] is in custody within this state or his whereabouts are either known to the state or readily ascertainable, we think that, in the absence of good cause or reason to the contrary, he should be given the usual opportunity, although of course he cannot be compelled, to be present in the grand jury room during the examination of the state's witnesses against him." (Emphasis added.) State v. Menillo, supra, 278. In Menillo the defendant was excluded because of threats made to witnesses who were expected to testify before the grand jury. "This did not invalidate the grand jury proceedings, although it was a departure from the usual Connecticut practice." Id.
The judges of the Superior Court in effect confirmed that the practice in Connecticut was to allow the defendant to attend the taking of evidence subject to the discretion of the judge when they promulgated 2017 of the Practice Book, 1963 (adopted June 7, 1976, to take effect Oct. 1, 1976). This section reads in part: "The following persons may be present while the grand jury is taking evidence . . . (4) The defendant, within the discretion of the judicial authority." This section, as amended, is now 609 of the 1978 Practice Book. See generally, State v. Canady, 187 Conn. 251, 445 A.2d 895 (1982).
We find that the trial court abused its discretion in excluding the defendant from the grand jury proceedings merely because he is an attorney. The defendant, however, has failed to show that he was harmed by this abuse of discretion. Therefore, although the court's action was wrong, it does not constitute reversible error.
C
QUASHING OF SUBPOENAS TO THE GRAND JURORS
On May 12, 1976, the defendant filed a motion to dismiss the indictment. The defendant claimed, inter alia, that the grand jury was "selected in an unconstitutional manner," denying the defendant due process and equal protection under the law. The motion stated no factual basis for the claim. At a hearing on the motion, defense counsel questioned the sheriff of New Haven County at length about the method used to Select the grand jury panel. The defense also subpoenaed each of the grand jurors from the panel to testify. The state moved to quash the subpoenas. In opposition to the motion to quash, defense counsel asserted a need to question the grand jurors about their background, race, and qualifications. He stated that he hoped to discover thereby whether this grand jury was a representative cross-section of the community, whether it was a blue-ribbon grand jury, and whether there had been intentional discrimination against some class of persons, possibly professional people or attorneys. The court granted the motion to quash the subpoenas.
"There is no constitutional requirement that members of the grand jury be selected in any particular manner. The constitutional guarantee merely forbids any intentional discrimination against race or class. Brown v. Alien, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692." State v. Cobbs, 164 Conn. 402, 409, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S.Ct. 77, 38 L.Ed.2d 112 (1973). To prevail on a claim of grand jury discrimination, the challenger must demonstrate that there was an intentional and systematic exclusion of a constitutionally cognizable group. Rose v. Mitchell, 443 U.S. 545, 565, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979); Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); see generally State v. Villafane, 164 Conn. 637, 644-51, 325 A.2d 251 (1973). Random selection is not required; State v. Villafane, supra, 644; State v. Cobbs, supra; nor does every identifiable class or race need to be represented. State v. Cobbs, supra, 409.
Counsel for the defendant made no attempt to lay a foundation for the general allegations in the defendant's motion to dismiss. When questioned by the court, he admitted he could be accused of being on a fishing expedition and was unable to say what class was being discriminated against. Defense counsel also indicated that he did not intend to limit his inquiry to discrimination, but rather hoped to pursue a general investigation into the selection of grand jurors. Although an investigator was retained by the defense, he was never called to testify. Nor was the sheriff questioned about systematic exclusion of jurors. The defense presented neither evidence nor affidavits which indicated that the defendant had a viable claim.
A defendant has a right to challenge an improperly selected grand jury. "More than a bare assertion that the system used was discriminatory, however, is required to overcome the presumption that the grand jury was selected in a proper manner." State v. Cobbs, supra, 408-409; State v. Davis, 158 Conn. 341, 345, 260 A.2d 587, remanded for resentencing, 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d 750 (1969). In addition, before a court will permit a full-scale interrogation of the jury panel, a defendant must show, by some independent evidence, that there are reasonable grounds to suspect that the panel is improperly constituted.
"This does not, of course, require that the challenge show that the panel is improperly constituted; but what it does require is that the challenger assert facts that tend to raise a doubt as to whether the panel may be improperly constituted. Then follows the inquiry to see if such suspicion, duly alleged, is supported by proof.
"To require a full-scale investigation of the grand jury panel solely upon a mere assertion, not supported by so much as an affidavit . . . that the panel was improperly drawn, would be to open every grand jury panel, no matter how perfectly impartial and representative, to a full-scale investigation — or perhaps more accurately, to a fishing expedition of broad range. Such a course would consume enormous amounts of time and energy of our already overburdened trial courts, with concomitant delays in their calendars, and would be especially injurious to the prompt disposition of justice." (Emphasis in original.) Rojas v. State, 288 So.2d 234, 237 (Fla. 1973).
The trial court correctly granted the state's motion to quash the subpoenas.
III
CHARGE TO THE JURY
A
THE DEFENDANT'S TESTIMONY
The defendant next claims that the trial court erred in its charge to the jury by instructing them that they should consider the defendant's interest in the outcome of the case when weighing his credibility as a witness. The defendant's constitutional claim is that the charge denies him due process of law. Although the defendant failed to take an exception to this part of the charge, and raises this claim for the first time on appeal, we have previously considered a challenge to similar instructions under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and will address the claim here. See State v. Maselli, 182 Conn. 66, 74, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); State v. Mastropetre, 175 Conn. 512, 524, 400 A.2d 276 (1978).
The charge was as follows: "An accused person is not obliged to take the witness stand in his own behalf. On the other hand, he has a perfect right to do so. In weighing the testimony that he has given you, you should apply the same principles by which the testimony of other witnesses are tested, and that necessarily involves a consideration of his interest in the case. You will consider the importance to him of the outcome of this trial. An accused person having taken the witness stand, stands before you just like any other witness and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including, of course, his interest in the verdict which you are to render."
We find inapposite language to the contrary in State v. Kish, 186 Conn. 757, 769-70, 443 A.2d 1274 (1982), State v. Miller, 186 Conn. 654, 668-69, 443 A.2d 906 (1982), and State v. Kurvin, 186 Conn. 555, 570, 442 A.2d 1327 (1982), and reaffirm and adhere to our holding as previously set forth in State v. Maselli, 182 Conn. 66, 74, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); State v. Mastropetre, 175 Conn. 512, 523-25, 400 A.2d 276 (1978).
This claim is totally without merit. We have without exception rejected challenges to language substantially the same as that challenged here in a line of cases starting as early as 1893. State v. Maselli, supra; State v. Mastropetre, supra; State v. Bennett, 172 Conn. 324, 374 A.2d 247 (1977); State v. Jonas, 169 Conn. 566, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L.Ed.2d 331 (1976); State v. Blyden, 165 Conn. 522, 528, 338 A.2d 484 (1973); State v. Moynahan, 164 Conn. 560, 574, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S.Ct. 1519, 36 L.Ed.2d 186 (1973); State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925); State v. Saxon, 87 Conn. 5, 22, 86 A. 590 (1913); State v. Fiske, 63 Conn. 388, 392, 28 A. 572 (1893).
B
SANITY CHARGE
The defendant also objects to the charge on the issue of sanity, claiming that it raised an impermissible presumption as to an element of the crime. The defendant concedes that he did not raise the issue of sanity at trial, and also acknowledged in his motion for acquittal of January 28, 1980, that "[t]he issue of insanity was never raised by the defense or by the evidence."
Further, the defendant filed no request to charge on the issue of sanity and took no exception at trial. We therefore refuse to consider this claim, raised for the first time on appeal. State v. Kurvin, 186 Conn. 555, 563-64, 442 A.2d 1327 (1982); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S.Ct. 306, 54 L.Ed.2d 193 (1977); State v. Green, 172 Conn. 22, 28-29, 372 A.2d 133 (1976).
C
CHARGE ON INTENT
The defendant's final objection to the jury charge is that the charge on intent violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Although no exception was taken to the charge, this court has previously considered Sandstrom claims under the bypass rule of State v. Evans, supra, when the issue of intent was central to the case. See State v. Cosgrove, 186 Conn. 476, 442 A.2d 1320 (1982); State v. Truppi, 182 Conn. 449, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981).
The intent instruction used by the court here is essentially the same as that approved in State v. Maselli, supra, 7511, 7711. The total charge is indistinguishable from numerous charges which we have repeatedly approved following the Sandstrom decision; see State v. Miller, 186 Conn. 654, 667-68, 443 A.2d 906 (1982); State v. Mason, 186 Conn. 574, 582-84, 442 A.2d 1335 (1982); State v. Cosgrove, 186 Conn. 476, 480-84, 442 A.2d 1320 (1982); State v. Pina, 186 Conn. 261, 264, 440 A.2d 967 (1982); State v. Stankowski, 184 Conn. 121, 148-52, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981); State v. Brokaw, 183 Conn. 29, 33-34, 438 A.2d 815 (1981); State v. Truppi, Supra, 453; State v. Nemeth, 182 Conn. 403, 411, 438 A.2d 120 (1980); State v. Vasquez, 182 Conn. 242, 253, 438 A.2d 424 (1980); State v. Maselli, supra, 75-76; State v. Perez, 181 Conn. 299, 311-16, 435 A.2d 334 (1980); State v. Arroyo, 180 Conn. 171, 173-81, 429 A.2d 457 (1980); State v. Harrison, 178 Conn. 689, 692-99, 425 A.2d 111 (1979); and does not include the conclusive presumption language consistently condemned by this court. Turcio v. Manson, 186 Conn. 1, 6, 439 A.2d 437 (1982); State v. Johnson, 185 Conn. 163, 176, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). Our review of the charge as a whole convinces us that the charge here was not likely to mislead the jury.
The defendant asserts that the instruction used here is identical to that given in State v. Moye, 177 Conn. 487, 493, 418 A.2d 870, vacated, 444 U.S. 893, 100 S.Ct. 199, 62 L.Ed.2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979), where we ultimately ordered a new trial. He claims, therefore, that we must find error. This claim is without merit for the reasons stated in State v. Cosgrove, 186 Conn. 476, 482 n. 3, 442 A.2d 1320 (1982).
IV
CHIP SMITH CHARGE
During their deliberations, the jury sent a note to the court stating that they were deadlocked eleven to one for conviction and requesting guidance. The court then gave a modified version of the "Chip Smith" charge. See State v. Smith, 49 Conn. 376 (1881).
The court charged as follows: "Previously in my charge I said this to you: To support a verdict it must be a unanimous one. But that did not mean that each juror should pursue his own deliberations and judgment with no regard to the arguments and conclusions of his fellows. Or that having reached a conclusion he should obstinately adhere to it without a conscious effort to test its validity by other views entertained by other jurors equally wise and justly resolved to do their duty. "To put it another way succinctly: Although the verdict to which a juror agrees must, of course, be his own conclusion and not a mere acquiescence in the conclusion of his fellows, yet in order to bring twelve minds to a unanimous result, the jurors should examine with candor the questions submitted to them and with due regard and deference to the opinions of each other. In conferring together the jury ought to pay proper respect to each other's opinions. The jurors ought not to doubt the conclusions of a judgment which is not concurred in by most of those with whom you are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of your fellows. "I am going to ask you to go back to the jury room and discuss this case further. "If you reach an impasse you can so notify the Court with the simple statement that you cannot agree or that you have reached an impasse. "You may now go back."
The "Chip Smith" charge has been so consistently upheld by this court that the defendant does not challenge it directly. See State v. Stankowski, 184 Conn. 121, 145-46, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981), and cases cited therein. Rather, the defendant claims that when the court knows that the jury are deadlocked eleven to one for conviction, and the jury know that the judge knows the division, the "Chip Smith" charge is tantamount to a directed verdict of guilty. This overlooks the fact that the "Chip Smith" charge, while encouraging a continued search for unanimity, also Stresses that each juror's vote must be "his [or her] own conclusion and not a mere acquiescence in the conclusions of his [or her] fellows . . . ." The language of the charge does not direct a verdict, but encourages it. We agree with the Second Circuit Court of Appeals which held, in a situation directly parallel to this one: "The fact that the judge knew that there was a lone dissenter does not make the charge coercive inasmuch as the nature of the deadlock was disclosed to the Court voluntarily and without solicitation. See Bowen v. United States, 153 F.2d 747 (8th Cir. 1946). To hold otherwise would unnecessarily prohibit the use of the Allen charge in circumstances where the judge was made aware of the numerical division of the jurors, for example, by an over-zealous juror, although he had not made the forbidden inquiry himself." United States v. Meyers, 410 F.2d 693, 697 (2d Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 86 (1969); see also United States v. Robinson, 560 F.2d 507, 517-18 (2d Cir. 1977), upholding the use of the Alien charge although the judge knew of an eleven to one deadlock and knew the identity of the dissenter.
The Allen charge (Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 [1896]) is the federal equivalent of the "Chip Smith" charge. See State v. Walters, 145 Conn. 60, 64, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45 (1958).
The court did not err in giving the supplemental "Chip Smith" charge in these circumstances.
V
EXCLUSION OF JUROR TESTIMONY
The jury returned their verdict on July 20, 1977. In accordance with traditional procedure, each juror was called by name and asked to remain standing while the verdict was delivered. The court clerk asked whether a verdict had been reached, and the foreman replied that it had. The clerk then stated: "Ladies and gentlemen of the jury, look upon the accused, you that have been sworn. What say you as to Case Number 12, 468, Connecticut versus Bernard Avcollie. Is Bernard Avcollie guilty of the crime of Murder, in violation of Section 53a-54a of the Connecticut General Statutes, or not guilty?" The foreman replied "[h]e is guilty," and no juror took exception to the verdict. Defense counsel immediately asked that the jury be excused, and the court excused the jury. The court then granted the defendant's motion for acquittal and the jury were discharged.
As previously noted, this court set aside the judgment of the trial court, reinstated the verdict, and remanded the case with direction to render judgment that the defendant was guilty and to impose sentence. After the remand, the defendant attempted to bring to the trial court's attention for the first time a claim that the original jury verdict was not unanimous. In support of this claim, the defendant proposed to call juror Edith Cass to testify that her vote was the result of in health and coercion by her fellow jurors. The trial court refused to hear this testimony, stating in its memorandum of decision that it was "limited to the specific direction of the [Supreme Court] mandate as interpreted in the light of the opinion. State Bar Assn. v. Connecticut Bank Trust Co., 146 Conn. 556, 561 [ 153 A.2d 453 (1959)]. In carrying out the mandate the Superior Court may not render a new or different judgment. Mazzotta v. Bornstein, 105 Conn. 242, 244 [ 135 A. 38 (1926)]. Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand. Nowell v. Nowell, 163 Conn. 116, 121 [ 302 A.2d 260 (1972)]." The trial court was correct in not going beyond the scope of the remand.
Furthermore, the defendant's offer of proof concerns either the personal reasons for Mrs. Cass' vote or the deliberative process itself. In Aillon v. State, 168 Conn. 541, 550, 363 A.2d 49 (1975), we announced a rule concerning juror testimony "`which excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict.' McCormick, Evidence (2d Ed.) 68, p. 148." Testimony concerning a juror's illness or the persuasive tactics of fellow jurors is clearly excluded under this rule, and it would have been highly improper to allow testimony of the sort proposed by the defendant. Aillon v. State, supra, 550 n. 3.
Finally, we note that the defendant failed to move for the jury to be polled, but rather moved to excuse the jury immediately after the verdict was announced. The decision to poll the jury is discretionary with the court; State v. Tucker, 181 Conn. 406, 420, 435 A.2d 986 (1980); however, we are reluctant to review a claim that a verdict is not unanimous when trial counsel, who observed the jury when the verdict was delivered, saw no reason to request a poll at that time.
Practice Book, 1963, 2280, now Practice Book, 1978, 869.